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Justices' Questions Suggest Support For Trump In Ballot Dispute; Arguments Wrap Up In Trump Ballot Case At Supreme Court. Aired 1:30-2p ET

Aired February 08, 2024 - 13:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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[13:33:10]

JAKE TAPPER, CNN HOST: By most analyses, it seems like this was a good day for Donald Trump at the U.S. Supreme Court.

The justices seemed to signal that they are poised to side with the former president and against the Colorado Supreme Court's decision to disqualify him and remove him from the 2024 presidential ballot.

Even some members of the court's so-called liberal wing seemed to pose some difficult questions to the lawyers opposed to Donald Trump.

Let's turn back to our esteemed panel of lawyers. Including now joining us, conservative attorney, James Bopp Jr.

Mr. Bopp, let me start with you.

You have argued in front of the Supreme Court, the U.S. Supreme Court multiple times. What were your takeaways from the oral arguments earlier today?

JAMES BOPP JR, ATTORNEY: I think your panelists have been right on in terms of interpreting the questions and concerns expressed by the justices. And that is, in your whole system of election, there's only one national office, and that is the presidency and vice presidency of the United States.

Whether you can have state-by-state determinations of very serious legal questions, many of which are unprecedented in our history, about Section 3 is disqualification.

If you can have state-by-state determinations of that, with the chaos and overturning of an election that even one state could cause if they disqualified the candidate that would have otherwise won, tells you that there needs to be a national solution for this.

[13:35:50]

And that seems to be Congress. Either on January 6th, when Congress is entitled, under the Constitution and the laws of the United States to determine eligibility, the qualifications of a candidate for president when they determine who is to be the president. Not through a statute that provides an appropriate mechanism for this.

It seems to me that that is what you are left with.

Colorado had to prevail on like a dozen serious legal issues, in order to prevail. It sounds like to me that there is a bunch of them that justices aren't willing to accept.

TAPPER: How do you ultimately think the justices are going to rule? Do you think there's a chance it could be a unanimous opinion, based on what you heard?

BOPP: You sure have got to think that. Yes, I agree. I've argued six times in the Supreme Court. I've won nine cases there. You have to be cautious in reaching the conclusions about the questions they ask.

But many of these justices were talking about not just asking questions or devil's-advocate question, but they were expressing their own concerns about the Colorado decision and where it would lead the country.

It is very important that our elections be considered legitimate. And this willy-nilly state-by-state, maybe just one bureaucrat or one state court judge taking a presidential candidate off, with the result of affecting the outcome of the election just is intolerable.

So it does -- I think it is Congress's role, and that's what they will leave it to.

TAPPER: George Conway, I want you to take a listen to the lawyer for the Colorado voters responding to a question from Justice Kavanaugh.

(BEGIN AUDIO FEED)

BRETT KAVANAUGH, U.S. SUPREME COURT JUSTICE: What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, letting the people decide?

Because your position has the effect of disenfranchising voters to a significant degree.

JASON MURRAY, ATTORNEY FOR COLORADO: This case illustrates the danger of refusing to apply Section 3 as written. Because the reason that we are here is that President Trump tried to disenfranchise 80 million Americans who voted against him. And the Constitution doesn't require he be given another chance.

(END AUDIO FEED)

TAPPER: Now I know you agree with that because I heard you saying, yes, exactly.

GEORGE CONWAY, ATTORNEY: Right.

TAPPER: But I don't know that Justice Kavanaugh --

CONWAY: Well, I agree with that. But I also think it's interesting that the solution that the Supreme Court seems to be headed towards does not respond to that.

It is saying that somebody else is going to disenfranchise the voters, be it the Congress on January 6th, or be it a federal court. We don't know which off-ramp -- where the off-ramp they're taking is going to go.

But they are not saying that's some -- a candidate for president cannot be denied the ability to sit as president for being an insurrectionist.

TAPPER: Just not by --

CONWAY: Right. So what they are saying is, they are saying, well, the president could be on the ballot, the person that is elected president could be on the ballot, and later found to be an insurrectionist.

Well, that seems to be just as much anti-democratic as what Kavanaugh seems to be directing his question at.

TAPPER: So, Jim, a day ago, I would've said this was a crazy hypothetical. But there are no crazy hypotheticals in this world anymore.

What if the Supreme Court rules the way that we think the Supreme Court is going to rule, the U.S. just Supreme Court, and says it is not up to states to do this. It's too much power, because it's a federal office.

What if, then, a Democratic Congress and President Trump are elected in November, and during that period, there is a conviction of Donald Trump, not for an insurrection, but for January 6th-related crimes by Jack Smith.

And then on January 6th, 2025, this Democratic Congress says, we're not going to seat an insurrectionist. He's clearly in violation of the 14th Amendment.

JIM SCHULTZ, FORMER TRUMP WHITE HOUSE LAWYER: If it goes down that road, we are going to be right back where we are today. All of this will end up back in the Supreme Court again, I believe.

I do think that if the court paves the way to that without looking at these other issues, right, with -- clearly, they don't want states willy-nilly making decisions where you have Texas -- maybe it happens to the other side. That was brought out during the hearing as well.

You know, somebody might take on Biden in that way and say he's disqualified for some reason by way of insurrection. What is the definition of insurrection? That was also raised by the justices. So you have those issues.

You also have Justice Jackson really homing in on the issue of officer and office and really throwing the Trump legal team a bone on that one. And they did not really bite on it. He did not take the opportunity to really seize the moment there.

[13:40:01]

Because it seems like she had real questions as to whether the president is an officer under that statute or not. The others really did not seize on that but she did. And I think that's significant.

Are they going to find a way that we don't end up with the January 6th issue in their ruling?

TAPPER: All right, just ahead, the political impact of today's hearing as Donald Trump moves forward as the Republican presidential frontrunner in case of other legal battles. Stay with us.

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TAPPER: A quite revealing two-hours-worth of arguments at the U.S. Supreme Court today. We are breaking down the top takeaways.

[13:45:00]

Including signals, seemingly, from the justices that they might be inclined to side with Donald Trump in his fight against the Colorado Supreme Court's decision to remove him from the Colorado Supreme Court ballot.

We heard from Donald Trump after the hearing wrapped, and he quickly went into campaign mode.

Kristen Holmes is in Florida covering Donald Trump.

Kristen, what more are you hearing from Trump world?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: I'm hearing that the former president has told his advisers that he thinks the arguments went well. We know that he was watching them, and then he came out and talked about it, saying it was a beautiful process, he wants democracy to work.

But as you mentioned, he quickly turned this into a campaign speech, attacking President Joe Biden. Unsurprisingly, particularly, given that he is still in the middle of this primary season.

He actually just took off moments ago for Nevada, where he is expected to win the caucus tonight. He's also the only viable candidate.

Part of his speech was very dedicated to this general election run that he has, at least he anticipates it to be. He's hitting President Joe Biden, saying that none of the things that are happening now across the globe would've happened.

But the other part of this that we have seen routinely was something that we heard again today, which is, despite the fact he thought the arguments went well, despite the fact that his advisers have told him it is a good, solid legal case, he still seeks to turn all of this into one giant legal mess.

By all of this, I mean all of the various cases that he's fighting. Continues to say that they there are political persecutions, that they are election interference, and they're all at the hands of President Biden.

Obviously, none of them, or most of these cases aren't linked to each other. Only two of them actually directly involve the Justice Department.

Again, this is how he started to campaign, how he is going to run the campaign if he is, in fact, the nominee, which it seems that it's likely that he could be.

TAPPER: All right, Kristen Holmes, thanks so much. Appreciate it.

Now let's go to the White House and CNN's M.J. Lee.

M.J., any reaction from the Biden camp to the U.S. Supreme Court hearing and the suggestion from many observers that it seemed as though Donald Trump is going to be on the ballot in November?

M.J. LEE, CNN SENIOR WHITE HOUSE CORRESPONDENT: Look, Jake, we don't expect the White House or the Biden campaign, for that matter, to weigh in, in any serious way as far as these legal proceedings are concerned.

That has been keeping with the strategy that they have kept with all along. They've been extremely careful to not weigh in any way in public about any of this, basically saying that these are legal decisions to be made in the judicial system.

Now as far as the president is concerned, he himself has talked about this at times, as recently as last week when he said that, as far as I am concerned, that is fine. That, referring to whether the former President Donald Trump ends up remaining on the ballot heading into November.

The thing that we will consistently hear from White House officials and campaign officials and the president himself is on the matter of the threat of Donald Trump that President Biden believes poses to democracy.

We have heard him talking about this in his speeches. We have heard him talking about this in casual settings, time and time again.

This is the message and the argument that we have heard consistently from the president that he believes that the former president was responsible for calling for an insurrection. And that this is a threat he has been preparing to run against in November.

That is sort of the main argument that continues to sort of frame and be central to the Biden campaign as they are making the full pivot to the election -- Jake?

TAPPER: All right, M.J. Lee, at the White House, thanks so much.

Let's bring in CNN senior political commentators, Van Jones and Scott Jennings. Van, even the justices appointed by Democratic presidents seem

skeptical of many of the arguments are being put forward by the Colorado attorneys. If Trump wins this case, it would be a political win as well.

VAN JONES, CNN SENIOR POLITICAL COMMENTATOR: Yes, a political win for him, obviously. Look, the big news today, Trump had a good lawyer. That was interesting to watch. Other than that, it's almost been like a foregone conclusion.

Which I think is very frustrating for a lot of people. This is a Supreme Court that seems very strong in trying to take rights away from women. Very strong in trying to take away the diversity program away from college kids, very, very strong. Voting rights away from Americans, very, very strong.

But now it's time to disenfranchise the disenfranchisers. And they're just looking for the exits. They can come up with excuses, do whatever they want to.

But on this one, they were trying to find any way not to do what I think a normal person looking at this would say. If Barack Obama sent 10,000 Black Lives Matter people to destroy a joint session of Congress, he would be in jail and couldn't run for president again.

It's bizarre to me to watch the system continue to bend over backwards as he plays this chicken game with our system. He's playing a game of chicken, and every institution swerves, including the Supreme Court.

[13:50:01]

TAPPER: Scott, do you disagree from that hypothetical from Van about what would have happened if Barack Obama had lost in 2012, had refused to leave office and had sent a mob consisting of African-American men to stop the counting? Do you disagree with what Van just said?

SCOTT JENNINGS, CNN SENIOR POLITICAL COMMENTATOR: I have no idea how to respond to a hypothetical like that.

I mean, all I know is this. The reality is that if this Supreme Court today, under the circumstances that we now have and the legal situation that we now have, whether to throw Donald Trump off the ballot, it would send our country and our political system into a world of chaos.

I think this whole thing today, Jake, is a way to begin to clear the decks so that American people can decide the future of Donald Trump. He's going to be eligible to be on. I think it's obvious.

This immunity case is coming up. Maybe they'll say he's not immune, which they probably should do. Then Judge Chutkan has to get her trial going.

I mean, the docks need to be cleared so that the American people can finally vote. And when they do, know what they're dealing with. Are they dealing with a convicted felon or are they dealing with someone who's been acquitted?

To me, that is paramount here. What is the best thing for voters? For Donald Trump to stand and get his fate from them and for them to know what they are dealing with when he gets it?

TAPPER: Van, what about that? What about the idea that maybe the U.S. Supreme Court -- we have no idea what they're going to do.

But ultimately, what if they end up saying that Donald Trump has to be on the ballot but also that he is not immune from prosecution and allows the special counsel case to go forward. What would you think of that?

JONES: I think that's probably where we are headed. I think that's perfectly fine.

But I just wanted to point out, constitutional conservatives, who had screamed all during the Obama years about how much they love the Constitution, they hug the Constitution like a teddy bear.

But suddenly now, they are radical Democrats. They say, oh, we just want the American people to do whatever they want to. We don't believe we have these constitutional guardrails to make sure that democracy doesn't elect popular, crazy people.

Democracy can elect popular crazy people, popular criminals? John Gotti might have been elected president. Who knows? But that you have a constitution to make that certain people, they were too young, they weren't born here, they're treated as treasonous traitors, can't become president.

And suddenly, the Constitution doesn't matter to conservatives. As long as Donald Trump continues his march, his runaway train back into power, all principals go out the window. It's bizarre to watch.

TAPPER: All right, Van and Scott, thanks to both of you. Appreciate it.

CNN senior Supreme Court analyst, Joan Biskupic, is here now after attending the high court hearing.

Joan, give us your big picture on the historic arguments you heard today.

JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: Jake, you and I kept comparing this to the Bush v. Gore. This is not Bush v. Gore.

Early on, you could really feel the momentum was on one side. They really expressed the strongest skepticism for the Colorado voters' lawyer. Jonathan Mitchell, who was representing Donald Trump, had a pretty easy time at the lectern.

And as you just commented to Van, even justices from the left side seem to be willing to understand where he was coming from.

And it was a combination of kind of the practicalities of the situation. Just as Elena Kagan said, you want one state to dictate what's going to happen nationally? This seems like an awfully national question that we're wrestling with here.

But also, the history of the 14th Amendment, Section 3. They didn't seem to buy the argument that that somehow would preclude Donald Trump from being on ballots.

Perhaps because Congress needs to authorize legislation perhaps because the terms of the amendment don't cover Donald Trump.

But one way or another, I think we could almost get to nine votes to fully reverse the Colorado Supreme Court.

TAPPER: So I only attended two Supreme Court arguments in my life. Both of them, the Bush v. Gore cases.

BISKUPIC: Yes.

TAPPER: And I know, atmospherically, it is interesting. And when you say it is different, you meant because, in Bush v. Gore, it was very clear that there were four justices who were inclined to support the Florida Supreme Court one way and five who were not. You are saying that this time it's more unanimous.

But atmospherically, tell us what --

BISKUPIC: That was also different.

TAPPER: Yes.

BISKUPIC: OK, remember, during Bush v. Gore, there was a lot of tension. Remember, that hung on to one vote. You and I thought, once they cut off the votes in Florida, the ballots back in the year 2000, that the court was going to rule for the George W. Bush. And indeed, it did.

But there was a lot more tension among the justices, a lot of interrupting, a lot of rapid-fire questions. This was much more tepid.

And so -- and also not only could you feel quickly where it was going, the rhythm was not confrontational. The rhythm was not confrontational among the nine.

I've told many times how they talk to each other during oral arguments. They make their own case to each other. That was not happening. I mean, it almost --

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TAPPER: In Bush v. Gore?

BISKUPIC: In this case.

TAPPER: In this case.

BISKUPIC: In this case, you could feel that, like, they didn't have to make the case to each other.

TAPPER: Oh.

BISKUPIC: There was enough of them who came into this argument ready to reject the Colorado voters' position. So it was -- the tension was just much lower.

[13:55:04]

And, Jake, this is something you would appreciate, we stayed until the bitter end. You can't believe how many reporters left in the middle of this thing.

TAPPER: Oh, is that right?

BISKUPIC: Yes. Because --

TAPPER: Because you're like, oh, it's --

BISKUPIC: Yes, yes. People had deadlines and --

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TAPPER: And also, they could continue to hear it.

BISKUPIC: Yes, they could hear it.

TAPPER: The audio.

BISKUPIC: But you could feel, by the time Jonathan Mitchell, Donald Trump's lawyer, left the lectern, you could kind of feel where things were going.

And then, very quickly, when Jason Murray got up for the Colorado voters, Elena Kagan came in soon and said, "What you're asking for is very extraordinary."

TAPPER: Very interesting.

And for anyone interested in reading what tension looks like, go read Justice Stevens' dissent in Bush v. Gore. That is anger. That is tension. And we didn't really hear that today.

We are going to have much more on today's historic day at the Supreme Court. Boris Sanchez and Brianna Keilar will pick up our coverage right after this quick break. I will see you at 4:00 for "THE LEAD."

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